Sumiti Bt Kasmirta Saman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 582/2023

[2023] HKCFI 1475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 582 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 March 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

4.According to the record, the applicant is being detained by the Immigration Department.

The applicant

5.The applicant is a national of Indonesia.  She last entered Hong Kong as a foreign domestic helper on 22 November 2019 and was permitted to remain until 1 April 2022, or two weeks after the termination of the employment contract, whichever was earlier.  On 2 June 2021, her employment contract was prematurely terminated.  However, she did not depart within the time limit and had overstayed since 17 June 2021.  On 28 April 2022, she was arrested in an operation conducted by the Immigration Department.  On 30 April 2022, she pleaded guilty to the criminal charges and was sentenced to 15 months’ imprisonments.  On 7 June 2022, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband.

6.In short, the applicant stated that she married her ex-husband in 2013. In around May 2021, she learnt from her mother that her ex-husband was a womanizer and a gambler.  He also appropriated the applicant’s remitted sums and did not use them on the applicant’s parents and their daughter.  He even sold their properties to the moneylenders.  The applicant was heartbroken and decided to divorce him.  Her ex-husband disagreed and constantly harassed her over the phone.  In October 2021, the applicant hired a lawyer and filed the divorce.  Since then, she had no contact with her ex-husband.  Meanwhile, the applicant stated that her ex-husband never physically hurt her.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 August 2022 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) there was no evidence showing that her ex-husband had the intention to harm or kill her [14]; (iii) her past behaviors did not suggest the perceived imminent and substantial risk of harm [15]; (iv) her ex-husband’s threats, if any, were localized [16]; (v) state protection would be available to her [17]-[22]; and (vi) internal relocation was a viable option [23]-[25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 6 March 2023, the Board conducted an oral hearing for her appeal [21].

10.Having considered the evidence, the Board made the following findings. It first noted that the applicant was evasive in giving oral evidence and that her accounts failed to convince the Board [31].  In particular, the Board observed that, in her evidence, there was no clear indication that the ex-husband wanted to harm or kill her; that she only mentioned before the Board that her ex-husband posed death threats towards her; that her evidence about when her ex-husband made the threats was changing; that she insisted on divorcing her ex-husband despite of the death threats; that she or her family members were never physically harmed by her ex-husband; that the dispute was only a private domestic one without any state involvement; that her assertion that the police would not protection her was a mere speculation as she did not seek help from them; and that there was no evidence that her ex-husband could locate her everywhere, if refouled [31].

11.In these circumstances, the Board rejected the applicant’s claimed threats from her ex-husband nor did it accept that her ex-husband was powerful enough to find her anywhere [37].  In any event, internal relocation was a viable option [59].

12.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.  

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 17 April 2023 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant had only attached a copy of the Board’s Decision, but did not set out any specific ground.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.The Board had, for the reasons given in paragraph 10, supra, rejected her claim that she has real risk of harm or being killed upon her return to Indonesia. It therefore dismissed her appeal.

19.There is no valid ground from the applicant to challenge the Board’s Decision.

20.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 8^th day of June 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1